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Beastie Boys open letter to Goldieblox: YOU sued US (Why?)

by: Dabitch, Nov 25 2013 - 7:50pm
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By Dabitch on November 25, 2013 - 19:50

Beastie Boys have penned an open letter to Goldieblox hoping to set the matter straight and get some answers. Outspoken feminist men in the group are clearly not appreciating the vitriol aimed at them online as news spread about the infringement in Goldieblox ad - many tumblr posts and blogs posts openly encouraged people to tweet and mail BeastieBoys to stop picking on Goldieblox. See our earlier post: Goldieblox : ' Gotta fight, for your right, to infringe'

The catch however, was that Goldieblox sued the Beastie Boys, and not the other way around as most news outlets reported.

Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.

It seems to me that the campaign thought behind the Goldieblox campaign has simply been "rewrite old songs with new girl power messaging", and really that's not such a bad idea, albeit unoriginal. Their latest ad, a 90" titled "Goldieblox breaks into Toys R Us" has wee princesses belting out Queen's "we are the champions" and it's the one they hope to show on the superbowl. No word yet if this cover was a licensed use.

For anyone interested in turning kids onto engineering with toys, please check out the list offered by the engineer who wrote The trouble with Goldieblox. Like her, I too feel that this "narrative play" divide need not be along girl-boy lines, and the pink toy Goldieblox has made is clearly very gendered. The engineering world is not. Coddling young girl engineers prepares them for a world where girls are special and treated differently, and the world treats all engineers the same.

Goldieblox are riding on the Beastie Boys name all over the world news, including hitting the front page of UK Daily Mail this morning is an impressive amount of "earned media" as they say, and all this interest has probably drummed up many sympathy votes for Goldieblox in the competition small business, big game where Goldieblox are competing for a spot aired during the super bowl.

Goldieblox are not scoring any points among feminists, however: GoldieBlox and the Three Feminism Follow-up Points at Shakesville points out that the stereotypes being espoused in this video and the related marketing materials are just reinforcing the same stereotypes , and are generally not happy with the entire product idea.

In short, it seems that Goldieblox have targeted a very rare thing, male celebrities who are outspoken feminists, and rode on their name and the controversy as publicity for the product they're selling. Not only did Goldieblox not seek permission to use the song, they're also cynically riding on Beastie Boys name to fame here, by suing them. From here it looks like they're trying to milk sympathy for being in a legal entanglement, while they themselves are the cause of the legal entanglement. A very bold marketing strategy, I must say. Let me know how that works out.

P.s. The impressive team of lawyers from Orrick, Hurst, Rutowski, Baker, Goldman, listed on the filed suit aren't cheap. This is after all the lawyer offices that wrangled facebook from the Winklevoss brothers, got the original Bratz® copyright, trademark, and trade secret judgement overturned, and many other high profile cases. Impressive, really, that a scrappy startup can afford them, but not to license a song.
Update we've now seen on twitter that Thom Yorke and Talib Kweli Greene have lent their support on twitter to Beastie Boys. Meanwhile, Goldieblox remain mum and won't give any statements to journalists.
The Goldiebloxgate on Adland.
1 Goldieblox : ' Gotta fight, for your right, to infringe' 23 November (Dabitch)
2 Beastie Boys open letter to Goldieblox: YOU sued US (Why?) 25 November (Dabitch)
3 Forget about Beastie Boys. Did GoldieBlox's infringement break Intuit competition rules? 25 November (Kidsleepy)
4 GoldieBlox learns a lesson in engineering bad PR 27. November (Kidsleepy)
5 Goldieblox: erasing the line between "disruptive" and "douchebaggery" 27. November (Dabitch)

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Check out Everythingtrademarks on tumblr who has posted: Beastie Boys v. GoldieBlox: Fair Use? … How About a Fair Shake

A mere four days later, on November 21, 2013, GoldieBlox filed a declaratory judgment action in California. It’s almost as if the complaint was drafted and ready to go the moment that video was shared on YouTube.

And for good reason.

All indications are that GoldieBlox never bothered to clear the rights to use the song. And four days is very little time for the parties involved to try to work this out without having to resort to the judicial system.

“Missed opportunity” … were the Beastie Boys even given an opportunity? Or is GoldieBlox being opportunistic?

Now, if Goldieblox had asked for permission, and Beastie Boys had said no, they'd just have to do the ad with another song. It's not like we don't do this every day in advertising. You've all been through that, I'm sure, and students if you haven't - brace yourselves because it will happen.
From an adland point of view (and not a legal one) here's why this bothers me: It shows a distinct lack of skill on Goldieblox' part that they can only A) come up with "parody a song" ideas and B) not switch songs if rights aren't settled. The "I'm on a goat" man is not a genius creative when all I have seen from him so far are regurgitated ideas and "parodied" song lyrics, every time. That's a one trick pony. Nice work if you can get it, I suppose.

Also Everything trademark may have invented a new term:
But this video had already gone viral before the suit was initiated … a suit that was initiated not by the rights holder but by the unauthorized user. So what do you call that … the Reverse Streisand Effect?

 

Dabitch's picture

Small Business Forbes

While GoldieBlox’s lawsuit may seem peculiar, attorney Jon Moskin, an intellectual property partner with the law firm Foley & Lardner, says U.S. law permits companies under reasonable threat of litigation to file a pre-emptive suit.

“The company may have invested a substantial amount of money in a new product, for example, and be threatened with claims … it puts a cloud over the company’s business plan, and customers may not want to carry a product if they feel it’s infringing,” says Moskin. By filing a suit pre-emptively, he says businesses are able to actively pursue a solution, rather than waiting to get hit with a lawsuit.

He says taking pre-emptive action also gives companies the home-court advantage, so to speak, as the defendant is forced to travel to the state in which the suit is filed in. While some of the defendants named, including Island Def Jam, are also based in California, Horovitz is identified in the suit as a resident of New York City.

Moskin says GoldieBlox doesn’t have a particularly strong case.

While the “fair use” rule allows people to use copyrighted material for the purpose of education, criticism, parody or public dialogue, Moskin says the fact that the GoldieBlox’s version of the song is being used explicitly to help sell a toy set doesn’t help the company’s argument.

“If they’d been doing this purely for educational purpose – it would certainly help them,” says Moskin. He says precedents on the books in California suggest that the law will view the Beastie Boys’ side more favorably.

However, the company may have already won in its own court of opinion, he says.

“The fact that you’re calling me, and that they are getting a lot of publicity from this – they may have made a calculated decision that the cost of the suit ,” says Moskin. GoldieBlox declined to comment for this article.

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